Foibles and Follies, Part 2

The second folly I want to talk about is somewhat embarrassing, since it is my own. Publication contracts are always an adventure for academic authors, of course; we are routinely taken advantage of by publishers who know that publication is a job requirement and believe they have us in a stranglehold. I once read a comment by a lawyer who works with authors that signing an agreement with one of the major publishers was akin to getting into a car with a clearly intoxicated driver – no sensible person should do it. So in this story I have no one but myself to blame. Nevertheless, I want to tell folks about it because it was not one of the big publishers that treated me badly; it was my own professional organization, the American Library Association.

The publishing arm of the ALA asked me last spring if I was interested in writing or editing a book on a particular topic that they identified. I was interested and, after talking with some colleagues and devising a plan that would combine some long essays with shorter case studies, enjoying, I hope, the best of both monographs and edited volumes, I agreed.

Once our proposal was accepted by ALA, we got to the point of negotiating a publication agreement. Our editor was quite accommodating about most of the issues we raised, but on one point he was inflexible — the indemnification clause. As most authors know, these clauses are used by publishers to shift most of the risk of running their business to the authors, the people who have the least control over the process and are least able to actually defend any lawsuit. Sometimes, of course, these clauses are moderate and really try to balance the risks. But not the ALA’s. Here is the clause I agreed to:

“The Author shall indemnify and hold the Publisher harmless from any claim, demand, suit, action, proceeding, or prosecution (and any liability, loss, expense, or demand in consequence thereof) asserted or instituted by reason of publication or sale of the Work or the Publisher’s exercise or enjoyment of any of its rights under this agreement, or by reason of any warranty or indemnity made, assumed or incurred by the Publisher in connection with any of its rights under this agreement.”

The clause goes on to say that “The Publisher shall have the right… to defend such claim, demand suit, action, proceeding or prosecution by counsel of its own selection and at Author’s expense….”

As I say, I am embarrassed to have signed this; were it not that, at that point in the planning, there were a dozen other people involved who are writing case studies, I would have walked away. I consider this clause shocking for a couple of reasons.

First, I am indemnifying ALA for anything that might go wrong, even if I have nothing to do with it and no control over it. This is notably worse than many indemnification clause, which often are limited to actions that the party making the indemnification has some control over. But here, even if ALA publishes the book with artwork on the cover that they fail to license properly, I could still be held liable for their mistake, even though it was unrelated to my authorship of the text. This is not just my interpretation, by the way; the editor admitted to me that he understood the contract the same way.

Second, I cannot even decide for myself how the action will be managed. ALA has absolute control over who the lawyer would be who dealt with whatever problem arose and what the legal strategy would be. My role is just to pay the bill. In a later sentence, the ALA does acknowledge that I might take control of some legal action, but only “with prior written approval of the Publisher.” They have all the control, I am responsible for all the costs. Nice work if you can get it.

I did try to change this, of course. I was told that ALA’s position was that this clause, unlike the rest of the agreement, could not be altered in any way. I asked to talk with the lawyer who wrote it and was told I was not allowed to, because it was non-negotiable. Even more than the actual provision, this inflexible and patronizing attitude was deeply offensive. To add insult to injury, the editor tried to make me feel better by telling me that this was just legal language and would never actually be enforced. This “don’t worry, we will never actually do the terrible things this agreement allow us to do” attitude is endemic in academic publishing, and it is obnoxious; if you don’t mean it, don’t include it, and if you insist on it, you obviously DO mean it.

It is not really news that publishers abuse authors. But the ALA preaches values that are contrary to these practices. As librarians, we support authors and encourage creativity, yet this exploitative agreement patronizes authors who write for the ALA and puts them at unconscionable risk. I have regretted signing this contract since the moment I did it. I will write/edit the book because I believe it will be valuable. But I think that I will not renew my ALA membership when it comes due; I no longer believe that the organization represents the values that matter to me as a librarian.

Comments (23)

Hardly. We will not make any money on this book, so finances are not a consideration, much less a “trump.” The reason I agreed is what I said, we had already done a lot of work to prepare a detailed proposal and there were a dozen other people involved besides myself. Those may nor be good reasons, and I may regret the decision to sign, but they were the reasons that motivated me at the time.

I can see why you signed it. You had gotten your colleagues on board and didn’t want to have their work be for naught. Balance that with the (fingers crossed) probability that the clause won’t be used. Like you, I am a librarian/lawyer and read contracts thoroughly and have seen the onerous clauses some publishers insert. I know that many of my librarian colleagues do not do such a careful read. So, I thank you for bringing it to our attention despite your chagrin. For those of us who have not published with ALA, forewarned is forearmed.

Thanks, Kevin, this needed to be said and said again. I am beginning to believe that this problem is systemic throughout ALA and its divisions. It not only reaches the publishing agreements but there are ridiculous problems with their licensing agreements for their electronic products. There seems to be little awareness of the efforts of their copyright and scholarly communication arms of their own organizations and it is beyond embarrassing. Talking the talk but not walking the walk.

I edited a series for an ALA division back in the last century and the division’s director excepted all the authors to hand the work over for free. Couldn’t figure out why we had a hard time getting authors.

ALA has a new Director of Publishing; maybe worth a call? In my experience on the Publishing Committee, there was definitely a gap between the discussions and expectations of academic authors and the understanding of some of the folks working at the ALA (vs ACRL) publishing level (e.g., the dust-up over the DH article in AL). You should take this to the committee, they will discuss it with ALA staff. And, with new directors in place, maybe a positive change can be made. I certainly wouldn’t give up on ALA over it quite yet.

Thanks, Kevin and others for bringing this up and sharing your insights. I’m the new AED for ALA Publishing and we are in the process of reviewing issues such as this throughout the department. I will find out today why the indemnification clause in the ALA Editions author contract is out of step with others in ALA and we will work with Mary Ghikas and our legal counsel to get it aligned as quickly as we can. We will also look at author contracts from university presses and other associations for guidance and alignment going forward. I agree (and am sure Mary G. and our legal counsel do, too) that indemnification should be consistent across contracts for similar work throughout ALA, and should meet authors’ and everyone’s needs in a mutually supportive way. Please look for another post from me later today with more information about steps we’re taking after we’ve had a chance to do some digging. And please don’t hesitate to be in touch directly with me at [email protected] any time you can help us do a better job for the field and everyone in it; many thanks.

Thanks, Scott–I posted early this morning, and my comment is awaiting moderation. I’m glad Kevin raised the issue–with several new staff in ALA Publishing (including me), we are indeed reviewing what needs changing, with author contracts a priority. I will post again later today to let everyone know what steps we’re taking in the short term (some already underway) and others we plan to take in the longer term. It’s an important conversation.

With my national association, I had to fight to get my royalties after two years and, when the association folded they did return my author rights. I had to explain, though, that it was rather abhorrent that a LIBRARY association treated authors so poorly.
Things worked out in the end and now I share my book for free.

As promised, here’s an update on how we started addressing this issue today.

The ALA legal counsel has reworded the indemnification clause, simplifying the language and making the mutuality more explicit. The next step is to make sure it jibes with the requirements of ALA’s insurance agents, and we’ve requested that review. (Chris Murphy, the Publisher for ALA Editions/Neal-Schuman, is also working with legal on other changes to simplify and update the contract.)

For the longer term, Kevin’s post and the responses made it clear that we haven’t got consistent author agreements across ALA. We are collecting author contracts used throughout the association with the goal of reviewing them and collaborating on standardization where feasible.

Thanks again for your insights and to Kevin for raising the issue. We’ll keep people posted on progress in this area.

Thanks, Joyce–and yes, maintaining flexibility for the wide range of different kinds of materials we publish across ALA will be important. We’ll work towards standardization in the language where it makes sense, but allowing for negotiation and customization in the areas where editors and authors agree it’s needed.

Thanks for sharing this all-too-common story, Kevin. I thought it might be of interest that this problem in author publication contracts is currently being addressed here at MIT through a Libraries-MIT Press collaborative effort, by working on ways to combat authorial burden when it comes to fair use of previously published content.